The Legal Challenge of Abortion Stigma—and Government Restrictions on the Practice of Medicine


Dov Fox

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During the 2016 election, Donald Trump won conservative support by promising that he would, if elected, nominate “pro-life” justices to the U.S. Supreme Court. Whether President Trump makes good on his campaign promise to restrict abortion rights may come down to competing impulses of the chief justice, John Roberts. On the one hand, he is basically a social conservative who has voted to protect state regulations that limit when and how women can terminate their pregnancies. On the other, the chief justice, as steward of the Court’s legacy, is reluctant to intensify partisan divides on the bench and willing to affirm even precedents with which he disagrees. These dueling dispositions -- from the man whom many see as the new “swing justice” -- hold the key to a blockbuster new case that legal historians call “the most unpredictable the Supreme Court has been on abortion in decades.”

The case is not just about abortion access. Before addressing the constitutional status of a law’s far-reaching limits on abortion, the Court will have to decide whether clinics and doctors have a right to challenge the law in the first place. This question concerns a legal doctrine that courts refer to as constitutional standing. It poses this issue: Who is entitled to bring suit against government regulations? Is it only the people most directly affected, in this case, the women prevented from ending their pregnancies? Or can clinics or doctors also sue—whether because the law also affects them or because they seek to stand up on behalf of their patients, when social conditions make it extremely difficult for them to publicly defend themselves? I argue that regulated practitioners should be allowed to sue under either theory of standing, and that precedent demands the Court strike down laws like this one that make it unduly difficult for women to exercise their constitutional right for no demonstrable health benefit or other legitimate interest.